Legal Considerations in Relationships Between Transit Agencies and Ridesourcing Service Providers (2018) / Chapter Skim
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Pages 37-72
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From page 37... ...
37 registration, and insurance fees, and tolls, parking, and tickets.
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38 similarly unsuccessful outcomes.265 As of November 2017, no litigation challenging the specific requirements of state TNC statutes had been identified. Part IV discusses state and local government responsibility in general for regulating RSPs, including model legislation that has influenced state TNC statutes, state law on employment classification, accessibility requirements for persons with disabilities and minority and low income populations, requirements for maintenance of insurance, tort liability, RSP permitting, driver safety, public space issues, data requirements, public records law, and privacy concerns.
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39 such as preemption of local regulation of TNCs and state regulatory activities concerning TNCs. While a number of other state statutes -- such as those governing wage and hour requirements, driver licensing, and business permitting -- may be relevant to assessing legal issues involved in contracting with TNCs, Part III focuses on TNC statutes.
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40 success,280 ultimately about two-thirds of the states with TNC statutes preempt local regulation of TNCs in whole or in part, albeit with some exceptions for airport authorities. The Texas TNC statute specifically voided existing local regulations as of the effective date of the statute.
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41 compliance with applicable vehicle requirements, adopting nondiscrimination and accessibility policies, and establishing record maintenance guidelines) ; preconditions to the TNC allowing a driver on its network (requiring application with specified identification information, proof of insurance; conducting background, sex offender, and driver record checks; not knowingly allowing a driver with specified disqualifying offenses, such as three moving violations within the preceding three years, to drive on network)
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42 includes requirements not specifically called for in the statute (e.g., hours of service) , as well as more detailed requirements concerning statutory requirements (e.g., permits and enforcement)
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43 In 2014, the California legislature enacted AB 2293,316 which primarily, but not exclusively, addressed insurance requirements. The legislation ratified the CPUC's regulatory approach by including the new TNC article under the Public Utilities Code Chapter on Charter-Party Carriers of Passengers, adopting the CPUC's definition for TNCs, and specifying that the legislation does not prohibit the CPUC from exercising its rulemaking authority in a manner consistent with the legislation nor does it prohibit TNC-related enforcement activities.
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44 new category of TCPs for autonomous vehicles.324 Other parties to the proceeding either argued that the CPUC does not have the authority to regulate autonomous vehicles or that the CPUC should not yet issue autonomous vehicle regulations.325 4. Local Regulation TNC regulations imposed by various local governments became moot when their states passed TNC statutes that preempted local regulation.326 Uber Technologies Inc.'s possible status as a CharterParty Carrier, and noted that a separate ruling would be issued to discuss background checks, driver ID through methods such as fingerprinting, and party comment of the definition of personal vehicle.319 The state TNC statute was amended to add § 5444 (AB 1422, 2015)
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45 service in defined neighborhoods of SFMTA's service area.329 [E-17] The resolution to amend the Municipal Transportation Code stated that such vehicles could support San Francisco's transportation goals "if they operate safely, replace single-occupancy vehicle trips, reduce car ownership, and contribute to a reduction in parking demand,"330 but that they could also "contribute to adverse impacts on San Francisco's transportation network, including delaying transit bus and rail service, increasing traffic congestion, and interfering with the safe movement of people walking, biking, driving, and riding transit in San Francisco."331 The regulations excluded taxis and vehicles operating entirely within the scope of a CPUC permit or certificate of public convenience and necessity.332 Specific requirements of these SFMTA regulations are discussed further in this digest under relevant issue headings.
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46 extended to employment law.335 Courts have applied the common law right-to-control standard in a variety of ways.336 The second primary standard for determining employment status is the economic realities test, applicable under the FLSA, and applied in Rutherford Food Corp.
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47 is in fact an independent contractor.346 The seminal California case on determining employment status is S.G. Borello & Sons, Inc.
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48 The court reviewed the particular circumstances of Borello's operation, concluding: Under these circumstances, Borello retains all necessary control over the harvest portion of its operations. A business entity may not avoid its statutory obligations by carving up its production process into minute steps, then asserting that it lacks "control" over the exact means by which one such step is performed by the responsible workers.354 Finally, in rejecting the growers' argument that by signing the sharefarmer agreement the laborers had agreed to accept its risks and benefits, the court noted that -- aside from the fact that such agreements do not necessarily overcome other strong indicia of employment -- there was no indication that the laborers had any real choice as to terms.
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49 falling outside the scope of that order. The court of appeals explained that under the relevant IWC wage order, there are three relevant definitions of to employ: "(a)
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50 right-to-control test. The court restated the 20-factor test and concluded that the restated test, which includes economic reality considerations but maintains a primary focus on the employer's right to control, was the appropriate test for determining employment status under the KWPA.
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51 (3) The TNC does not assign a TNC driver a particular territory in which to operate, (4)
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52 talked about creating similar associations for California drivers.377 C Disability Accessibility Requirements for Public Transportation The typical state TNC statute includes relatively general language concerning accommodating individuals with disabilities.
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53 special needs, as well as containing the usual requirements that disabled passengers not be charged more and that TNC drivers comply with all legal requirements concerning accommodation of service animals.385 However, although the implementing regulation requires a TNC oversight process that ensures that wheelchairs are accommodated and that records related to accessibility of riders with special needs, disabilities, and visual impairments be maintained, the regulation does not specifically require that TNCs provide WAVs.386 The session law that enacted the Massachusetts TNC statute required the establishment of a task force to review current laws, regulations, and local ordinances governing the ride for hire industry, including TNCs, and to make recommendations concerning public safety, consumer protection, and the economic fairness and equity of the regulatory structure governing the industry. The task force was directed to consider sixteen specified issues -- six of which explicitly mentions TNCs -- including "the feasibility of establishing a Massachusetts Accessible Transportation Fund credited with annual surcharges from ride for hire companies that do not, as determined by the task force, provide sufficient wheelchair-accessible service."387 5.
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54 and courteous manner" and specifies requirements for wheelchair securement.394 In July 2017, the New York City Taxi and Limousine Commission proposed a rule change that would "require all FHV [For-Hire Vehicle] Bases to send 25% of their dispatched trips to wheelchair accessible vehicles," in an effort to increase the availability of WAVs.395 The joint comment received from several major providers, including Uber, objected to the proposal as ineffective in increasing WAVs or reducing the wait time for them and as having negative economic effects on their industry.
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55 that transit agencies should consider in evaluating whether/under what terms to enter into relationships with TNCs. It appears that insurance coverage for microtransit providers will be covered by state insurance requirements for vans and buses; no state statutes were identified that specifically covered microtransit providers.
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56 D.14-11-043 defined "providing TNC services" to cover three periods: (1) App open -- waiting for a match.
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57 • The Model Act does not require the TNC to maintain excess coverage of at least $200,000 per occurrence to cover any liability from the driver's use of the TNC app. • The Model Act does not provide that the insurance coverage mandates do not limit TNC liability to the amount of the required coverage.
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58 sets forth nine criteria for determining whether an individual is an employee under Colorado law. These criteria supersede the common law.424 However, Colorado's Transportation Network Service Company Act more specifically provided that the Director of the Division of Workers' Compensation "may by rule determine whether or not transportation network companies have an obligation under existing Colorado law to provide or offer for purchase workers' compensation insurance coverage to transportation network company drivers."425 If state law does not address the eligibility of TNC drivers, then the general analysis required to determine employee status under state employment law must be undertaken to determine eligibility for workers' compensation insurance.
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59 Other factors inherent to TNC operations that may affect liability include the distracted driving issues inherent in relying on an app to connect drivers to passengers,434 possible conflict between state laws against cell phone usage while driving and app-driven systems for picking up passengers, leasing of vehicles to TNC drivers, and state laws that award a public franchise to TNCs.
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60 facts of the individual incident could also affect the sovereign immunity analysis. Waivers. -- State law varies on the enforceability of waivers of tort liability.
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61 arrange such leases could affect the outcome in liability litigation by affecting the determination of the existence of an employment relationship.448 Generally an employer is not responsible for the negligence of an independent contractor.449 However, this general rule is subject to numerous (and arguably overlapping) exceptions, including the peculiar risk (inherently dangerous activity)
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62 Where it can be reasonably alleged that a TNC knows or should have known that a driver had a propensity for the activity, for example, reckless driving or assault, giving rise to the alleged harm suffered, there may be a colorable claim for negligent hiring.463 Given allegations concerning the inadequacy of TNC background screening, the question may arise whether the transit agency that has entered into a relationship with the TNC reasonably should have known of this risk. Similar issues arise as to training and supervision.
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63 for a dispatch assignment from El Palmar. The only penalty for refusing a fare was losing his place in El Palmar's dispatch line.
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64 to determine the existence of an agency relationship, the court cited to several employment cases, including Yellow Cab Coop. Tinkham v.
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65 and hold harmless San Francisco (city and county) from all claims that might be made against them for damages for injury, death, or property damage resulting directly or indirectly from the activity authorized by the permit; requiring permittee compliance with applicable laws, including Article 1200, the San Francisco Charter and Municipal Code, the California Vehicle Code, the California Public Utilities Code, California worker's compensation laws, and the ADA; providing for reduced permit fees for operation of zero-emission vehicles and for serving stops within designated areas of service; setting forth reasons for revoking permits and imposing administrative fines on permittees; providing for administrative fines against non-permit holders; and summary suspension of permits for health or safety reasons.488 H
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66 required for taxicab and other for-hire vehicles.496 However, this was decidedly not the direction that most states chose to go. Instead, the requirements found in the NCOIL Model Act have often, though not universally, been adopted in state TNC statutes.
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67 Alliance, the Los Angeles Department of Transportation, the San Francisco International Airport, and SFMTA all submitted comments in favor of requiring biometric background check requirements for TNC drivers.505 The arguments included, inter alia, that biometric checks are the only means of confirming the applicant's identity; biometric checks do not unduly discriminate against minorities; the National Sex Offender Public Website is incomplete; that the TNC background checks have failed, as demonstrated by a lawsuit brought by the District Attorneys of San Francisco and Los Angeles506; and that government conducted checks are required to ensure impartiality. Ultimately, however, the CPUC decided against requiring biometric checks, although it did add background check requirements beyond those established under the California TNC statute.
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68 December 2015, the PSC had disqualified 6% of TNC drivers, 97% of those being Uber drivers.513 Massachusetts. -- The Massachusetts TNC statute disqualifies drivers who have been convicted within 7 years of specified crimes (e.g., violent crimes, DUIs, leaving the scene of an accident, felony robbery, or felony fraud) or have had within 3 years more than four traffic violations or any major traffic violation.
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69 frequency of inspections, the type of entity that is authorized to perform the inspection, and recordretention requirements. Other vehicle safety requirements include trade dress and vehicle ownership.
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70 many do not.530 Designating specific pickup and drop-off points for RSPs may raise liability issues similar to those that transit agencies may encounter with designating bus stops.531 This issue is as relevant to microtransit as to TNCs. For example, in San Francisco, when Chariot filed an application with the CPUC to operate as a fixed-route and on-demand passenger stage corporation, both the SFMTA and the Golden Gate Bridge, Highway and Transportation District (Golden Gate)
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71 usage on the public way and at Amtrak train stations.539 As of September, the Philadelphia Parking Authority (PPA) , which has regulatory authority over TNCs in Philadelphia, had not yet issued regulations under Pennsylvania's 2016 TNC statute.540 In the interim, the PPA appeared to provide directives for specific large events.541 Chicago, however, regulates TNC operations at two designated areas within the city as well as at its airports.542 The regulations cover the airports in general, with specific operating protocols for O'Hare and Midway.
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72 public transit) ,550 safety,551 and evaluating compliance with a range of legal requirements (including nondiscrimination)
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